Reconceptualising the Law of the Dead by Expanding the Interests of the Living

Abstract

Despite its name, the Australian law of the dead — a term used here to refer to the common law governing the treatment and disposal of the body of a deceased person — has extraordinarily little to do with the recently deceased. Instead, it is traditionally (and narrowly) conceptualised from the perspective of the still-living, with post-death disputes — such as those relating to posthumous interferences with the corpse — being decided by reference to the person who holds the right to possession of the body of the deceased. In contrast, whilst her physical shell continues to play a role at law, from the moment of death onwards the deceased as a person is denied legal existence in the form of rights, interests, or duties. This paper challenges this traditional formulation of the law of the dead by bringing the interests of the deceased to the forefront. It does this by arguing that the law of the dead should be reconceptualised so that the holder of the right to possession of the body of a particular deceased person is considered to experience an expansion of their own personal set of interests; this expansion being equivalent to those interests held by the deceased in relation to her body during her life and continuing into a 'posthumous space' after her death.